Rights of Arrested Persons in India | Legal Protections & Bail

What Are the Rights of an Arrested Person in India?

The rights of an arrested person are essential to safeguard individual liberty and ensure the protection of human dignity in any legal system. Arrest often comes with stress and fear, especially when individuals are unaware of their legal entitlements. India, being a democratic country governed by the rule of law, has enshrined various rights in its Constitution and legal framework to prevent arbitrary and unjust arrests. These rights are derived from constitutional provisions, criminal procedure laws, and landmark Supreme Court judgments.

Understanding these rights empowers citizens to act decisively in critical situations, ensuring that police or legal authorities do not misuse their powers. Arresting someone without following proper legal procedures can lead to abuse, harassment, and violation of basic human rights. Thus, knowledge of rights such as the right to remain silent, the right to legal representation, and the right to medical examination becomes a critical shield against exploitation.

This research aims to shed light on the constitutional rights, procedural safeguards under BNSS, and the critical judgments that uphold these protections. Furthermore, it emphasizes special protections for vulnerable groups like women and juveniles while offering practical advice on what an individual should do during an arrest.

Constitutional Rights of Arrested Persons

The Indian Constitution is the supreme law of the land, and it guarantees several fundamental rights to protect individuals, including arrested persons. Article 20 specifically addresses protections during arrest and trial, ensuring that individuals are treated fairly and not subjected to arbitrary punishment.

“20. Protection in respect of conviction for offences-

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.”

Ex-Post Facto Laws (Article 20(1)): This clause ensures that no person can be punished under a law enacted retrospectively. If an act was legal at the time of commission, but later declared illegal, the individual cannot be penalized for the earlier action. This provision protects against arbitrary application of new laws.
Double Jeopardy (Article 20(2)): The doctrine of double jeopardy states that no person shall be tried or punished twice for the same offense. This protection prevents harassment through multiple trials and safeguards individuals from legal exploitation.
Self-Incrimination (Article 20(3)): Individuals have the right to remain silent and are not obligated to testify or produce evidence that could incriminate themselves. This provision prevents forced confessions and protects individuals from police abuse during interrogation.

These constitutional safeguards collectively form a foundation for fair treatment and justice. Together, they reflect India's commitment to upholding human dignity and the rule of law.

Basic Rights During Arrest in India

The rights of an individual during arrest focus on ensuring that arresting officers act responsibly and the individual’s liberty is not violated arbitrarily. Upon arrest, the accused person has the following entitlements:

Right to Know the Reason for Arrest: Police must inform the individual about the grounds of arrest in a language they understand. This ensures transparency and prevents arbitrary detentions.
Police Identification: The arresting officer is legally obligated to display their name, rank, and other identification details to establish accountability. Failure to comply can render the arrest illegal.
Right to Inform Family or Friends: Police must notify a family member, friend, or chosen person about the arrest and the location where the arrested person is being held.
Right to Legal Representation:
The arrested individual has the fundamental right to consult and be defended by a legal practitioner of their choice under Article 22(1) of the Indian Constitution. If they cannot afford a lawyer, they are entitled to free legal aid provided by the Legal Services Authorities Act, 1987. Police cannot deny or delay access to legal representation, and the arrestee has the right to private discussions with their lawyer.
Production Before a Magistrate:
The arrested person must be presented before a magistrate within 24 hours of their arrest, as per Section 58 of BNSS, 2023. This timeframe includes travel to the magistrate's court but excludes public holidays. The objective is to ensure that no individual is kept in police custody longer than necessary.

Legal Rights During Police Custody

Once a person is in police custody, specific rights act as safeguards to prevent torture, coercion, or other forms of abuse:

Protection from Torture:
Custodial torture, including physical abuse or mental harassment, is prohibited upheld by Article 21 of the Constitution, which guarantees the right to life and dignity.

Medical Examination:
Under Section 51 of the BNSS, the arrested person has the right to a medical examination to document injuries and ensure they receive appropriate treatment. Medical examinations are mandatory after arrests to prevent allegations of torture or neglect by police.

Record of Statements: Police must record statements made by the accused without coercion. Forced confessions or statements obtained through threats are inadmissible in court under Section 23 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) .
Right to Remain Silent: An arrestee can refuse to answer questions that might incriminate them, as upheld under Article 20(3) of the Constitution. This right ensures that no person is forced to testify against themselves during an investigation.
Special Rights for Vulnerable Groups- Certain groups, such as women, children, and other marginalized individuals, require additional protections to safeguard their dignity and rights during arrest and custody. Laws recognize their vulnerability and provide tailored rights for them.

Special Rights for Vulnerable Groups

Women Arrestees: Women are entitled to specific protections during arrest to prevent abuse and harassment. A woman cannot be arrested after sunset or before sunrise unless special permission is obtained from a magistrate. Such arrests must be conducted only by female officers, and women cannot be detained in regular police lock-ups but must be kept in separate facilities with adequate security. During medical examinations, only a female doctor is permitted to conduct the procedure. These provisions are in place to ensure the physical and mental safety of women under custody.
Juvenile Arrestees: Children under the age of 18 enjoy protection under the Juvenile Justice (Care and Protection of Children) Act, 2015. Juveniles cannot be arrested or detained in police lock-ups or jails meant for adults. Upon arrest, the child must be handed over to the Juvenile Justice Board and provided counselling and rehabilitation services. They must also be treated with compassion, with efforts focused on their reintegration into society.
Other Marginalized Groups: For persons with disabilities or those from marginalized socio-economic backgrounds, additional care must be taken to ensure communication in accessible formats and respect for their dignity during legal proceedings.

These measures prioritize the safety, dignity, and rehabilitation of vulnerable individuals.

Bail Provisions in India

Bail is a fundamental right provided under the Indian legal system to balance the liberty of the accused with the requirements of the investigation. The process of bail can vary depending on whether the offense is bailable or non-bailable, as defined in the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Bailable Offenses: In cases of minor offenses classified as bailable (e.g., theft under a specified monetary value), the accused has the statutory right to bail. The police or magistrate must grant bail once the accused complies with the conditions, such as furnishing a bond. Section 478 of the BNSS governs these provisions and ensures that individuals charged with less serious crimes are not unnecessarily detained.
Non-Bailable Offenses: For serious crimes, such as murder or rape, bail is not automatic. Under Section 480 of the BNSS, the magistrate has the discretion to grant bail based on factors like the severity of the offense, the likelihood of the accused absconding, and any threats posed to witnesses. In such cases, lawyers must present strong arguments in favour of the accused's release.
Default Bail: If the investigative authorities fail to file a charge sheet within the stipulated timeframe (60 days for most offenses, and 90 days for offenses punishable with imprisonment of 10 years or more), the accused can apply for default bail under Section 187(3) of the BNSS. This provision ensures that investigations are conducted promptly, without undue detention of individuals.

Bail ensures that the justice system does not penalize the accused prior to trial while maintaining public safety.

Arrest Procedures Under BNSS

The Bharatiya Nyaya Sanhita Samhita (BNSS) replaces the Indian Penal Code (IPC) to modernize the legal framework, emphasizing transparency and accountability during arrest procedures. Arrest procedures under the BNSS aim to prevent misuse of police powers and protect the constitutional rights of individuals.

Notice for Minor Offenses: Under Section 35(3) of the BNSS, police are required to issue a written notice to individuals accused of minor offenses before proceeding with an arrest. This step allows the accused to cooperate voluntarily without being detained unnecessarily, reducing the burden on the criminal justice system and preserving individual liberty.
Arrest Memorandum: Section 36 of the BNSS mandates the preparation of an arrest memorandum, a crucial document ensuring procedural transparency. The memorandum must include details like the reason for arrest, the time and date of detention, and the identity of the arresting officer. Additionally, it must be signed by at least one witness (who may be a family member or a local resident) and countersigned by the arrestee. A copy of this document must be handed to the arrestee’s family or representative.
Family Notification: To ensure accountability, the BNSS requires that police promptly inform the family or acquaintances of the arrested person about the arrest and their detention location. Such provisions protect against secret detentions, a violation of fundamental rights.

Case Laws

D.K. Basu vs State of West Bengal (1997), AIR 1997 SUPREME COURT 610, 1997

The case of D.K. Basu vs State of West Bengal serves as a landmark judgment that transformed the protection of rights for arrested individuals and detainees. Initiated as a public interest litigation, the case brought attention to custodial deaths and torture, highlighting systemic violations of human dignity by law enforcement agencies.

Background of the Case

The petitioner, D.K. Basu, the Chairman of the Legal Aid Services, West Bengal, wrote to the Supreme Court regarding instances of custodial deaths and torture in police stations across India. The letter was treated as a writ petition under Article 32 of the Constitution. The respondents denied allegations but failed to provide satisfactory safeguards against custodial violence.

Key Issues

Extent of Custodial Violence: Custodial torture and deaths were identified as gross violations of the fundamental right to life (Article 21). The petitioner argued that such acts were perpetrated due to the lack of accountability and procedural safeguards.
Need for Transparency During Arrest: Arrests often led to illegal detention, with the accused being denied access to legal counsel, family, or judicial oversight. The absence of accountability mechanisms within the police force exacerbated the issue.

Supreme Court Guidelines

The judgment established the D.K. Basu Guidelines, which became the cornerstone of procedural fairness during arrests:

Identification of Police Officers: Arresting officers must display identification badges with their name and rank to ensure transparency.
Preparation of an Arrest Memo: An arrest memo must include the time, date, and reason for the arrest. It should be signed by the arrested person and a witness (preferably a family member or a local resident).
Informing Family or Friends: The family or friends of the arrested person must be informed promptly about the arrest and the place of detention.
Right to Legal Counsel: The accused has the right to consult a lawyer during interrogation, ensuring their defence preparation is not hindered.
Medical Examination: The arrested individual must undergo medical examinations every 48 hours during custody to record any injuries and prevent torture.
Judicial Oversight: Magistrates must ensure that arrested persons are presented before them within 24 hours, as per Article 22(2) and Section 57 of the CrPC.

Impact of the Judgment

The guidelines emphasized the importance of protecting individuals from the abuse of police power. By linking custodial safeguards to Articles 21 and 22, the court reinforced that procedural violations could result in disciplinary action or compensation for victims. Furthermore, the guidelines provided a framework for judicial monitoring, ensuring transparency in law enforcement.

Relevance to Arrest Rights

The D.K. Basu judgment significantly contributed to protecting the dignity of arrested persons. It balanced the state’s need to investigate crimes with the individual’s right to liberty and protection from abuse. While challenges persist in implementing the guidelines, the judgment remains a crucial safeguard against arbitrary and unlawful arrests.

Joginder Kumar vs State of UP (1994), 1994 AIR 1349, 1994 SCC (4) 260

Background

The case of Joginder Kumar arose from the illegal detention of the petitioner, a young lawyer, who was taken into custody by the Uttar Pradesh Police without formal charges or a valid reason. Despite repeated inquiries by his family, no clear grounds for his arrest were provided. Joginder Kumar filed a writ petition under Article 32, challenging the abuse of police power and seeking protection for the rights of arrested individuals.

Legal Issues

Can the police arrest a person without reasonable cause or justification?
What procedural safeguards exist to prevent arbitrary arrests?
How does Article 21 of the Constitution (right to life and liberty) apply to arrests?

Court Observations and Ruling

The Supreme Court addressed the misuse of discretionary arrest powers under Sections 41Crpc/ Section 35(1) & (2) BNSS and 151 CrPC/ Section 170 BNSS. The court observed that police often arrest individuals without proper justification, violating the right to liberty.

The court held that:

Arrests Should Not Be Arbitrary: Arrest is a deprivation of liberty and must be exercised only when absolutely necessary. Routine arrests violate the fundamental rights guaranteed under Article 21.
Accountability of Police: Police must provide credible material or reasons to justify the arrest. Arrests cannot be made merely on suspicion or vague allegations.
Notification of Rights: The arrested person must be informed of the grounds for their detention, and their family or friends must be notified of their arrest.
Judicial Scrutiny: Magistrates must scrutinize arrest records to ensure procedural compliance and prevent abuse.

Guidelines Issued

The court issued procedural safeguards to regulate police conduct during arrests:

Arrests must serve valid purposes, such as preventing further offenses or ensuring the accused’s presence at trial.
Notices under Section 35 (3) BNSS should be issued for minor offenses instead of immediate arrests.
The right to inform family and legal counsel must be guaranteed.

Impact of the Judgment

The judgment significantly limited police discretion in making arrests and highlighted the principle of procedural fairness. By linking arrests to valid and reasonable grounds, the court balanced the investigative powers of the police with the fundamental rights of individuals.

Relevance to Arrest Rights

The case reaffirmed that arrests are not punitive but preventive. It underscored the principle that an individual’s liberty can only be curtailed with just cause, ensuring transparency and fairness in the arrest process.

Arnesh Kumar vs State of Bihar (2014), AIR 2014 SUPREME COURT 2756

The Arnesh Kumar case is a landmark judgment addressing the misuse of arrest powers under Section 498A of the Indian Penal Code (IPC)/ Section 85 of Bharatiya Nyay Sanhita (BNS), which pertains to cruelty against married women by their husbands or in-laws. This case provided clarity on the procedures police and magistrates must follow during arrests in minor offenses, with the aim of preventing unnecessary detentions and ensuring procedural safeguards for accused individuals.

Background

Arnesh Kumar, the petitioner, was accused by his wife under Section 498A IPC for alleged cruelty and dowry harassment. Arrests under this provision were common, and allegations were often used as a tool for harassment. The petitioner challenged the legality of routine arrests in such cases, asserting that the police were abusing their discretionary powers.

Legal Issues

When can police arrest a person in a non-cognizable offense?
Does arrest serve as an automatic response to allegations?
What safeguards exist to balance individual rights and investigative needs?

Supreme Court Observations and Decision

The court observed that arrests are often made mechanically, without due consideration of whether they are necessary. Arrests must be an exception, not a rule, particularly in cases where the punishment for the offense is less than seven years of imprisonment.

The court laid down the following guidelines:

Avoid Mechanical Arrests: Arrests under offenses punishable with imprisonment of up to seven years, including Section 498A IPC, must not be made automatically. Police must exercise discretion and justify arrests with proper reasoning.
Use Section 35 (3) BNSS Notices: For minor offenses, police should issue a notice of appearance under 35 (3) of the BNSS before arresting the accused. Arrests should only be made if the individual fails to comply with the notice.
Ensure Accountability: The reasons for arrest must be documented in the case diary, and judicial magistrates must scrutinize arrest records to ensure compliance with procedural safeguards.
Non-Custodial Alternatives: The court encouraged the use of bail and other non-custodial measures for individuals accused of minor offenses, unless custody is deemed essential for the investigation.

Impact of the Judgment

The Arnesh Kumar judgment significantly reformed the procedural approach to arrests, reducing unnecessary incarcerations and preventing the misuse of laws like Section 498A IPC. It shifted the focus from immediate detention to ensuring accountability and fairness in the justice process.

The judgment highlighted the principle that liberty is sacrosanct and cannot be curtailed arbitrarily. It also placed the onus on magistrates to act as custodians of

individual rights by scrutinizing arrest records and ensuring that due process is followed.

Relevance to Arrest Rights

This case is crucial for protecting the rights of arrested persons. It reiterates that arrest is not a form of punishment but a preventive measure. By mandating procedural safeguards like Section 41A notices, the judgment promotes transparency and balances the interests of investigation with individual liberties.

State of Punjab vs Baldev Singh (1999)(AIR 1999 SUPREME COURT 2378)

Background

The case of State of Punjab vs Baldev Singh dealt with the procedural safeguards under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Baldev Singh, along with others, was arrested during a search operation where the police recovered a significant quantity of narcotics. The accused argued that the search was conducted illegally because they were not informed of their statutory right under Section 50 of the NDPS Act to request the presence of a magistrate or gazetted officer during the search.

Key Legal Issues

What is the scope of the rights under Section 50 of the NDPS Act?
Is non-compliance with procedural safeguards fatal to prosecution under the Act?

Court Observations and Decision

The Supreme Court interpreted Section 50 of the NDPS Act to be a mandatory provision designed to protect the rights of individuals during search and seizure operations. The court held:

Mandatory Compliance: The police must inform the accused of their right to be searched in the presence of a magistrate or a gazetted officer before conducting any personal search.
Consequences of Non-Compliance: Failure to comply with Section 50 invalidates the search and renders the evidence inadmissible. Procedural safeguards are vital to ensure fairness and prevent misuse of authority.
Scope of Section 50: The court clarified that the provision applies only to personal searches and not to searches of vehicles, premises, or baggage.

Impact of the Judgment

The judgment ensured that procedural fairness became an integral part of NDPS cases, emphasizing that the rights of the accused must not be sacrificed at the altar of expediency. It also reinforced the principle that statutory safeguards cannot be bypassed, even in cases involving serious offenses like narcotics.

Relevance to Arrest Rights

This case highlights the importance of procedural safeguards during arrest and investigation, particularly under special laws. It reinforces the principle that rights must be preserved even when law enforcement is pursuing serious crimes.

Sheela Barse vs State of Maharashtra 1983) (1983 (2) SCC 96)

Background

The case of Sheela Barse, a journalist and activist, exposed the plight of women prisoners in India. She filed a public interest litigation after interviewing female detainees who reported abuse and harassment in custody.

Supreme Court Directions

The court issued critical guidelines to protect women in custody:

Women detainees must be held in separate lock-ups under the supervision of female police officers.
Regular inspections of jails and lock-ups by judicial magistrates must be conducted.
Legal aid must be provided to women unable to afford private lawyers.

Relevance

This judgment recognized the vulnerability of women in custody, promoting systemic reforms to safeguard their dignity and rights.

Emergency Contact Information

In emergency situations, having access to critical helplines can significantly reduce the risk of rights violations during arrest. India has established various contact points to assist individuals in distress:

Police Control Room (112): This is the primary helpline number for law enforcement assistance. Individuals can report arrests or seek immediate help for legal violations.
Women Helpline (1091): A dedicated number to assist women in distress, especially during arrests or cases of harassment. Police must prioritize cases reported through this line to ensure women’s safety.
Legal Services Authority (1516): Individuals unable to afford private legal counsel can contact the Legal Services Authority for free legal aid. The helpline ensures that economic constraints do not prevent access to justice.

Human Rights Commission (1800-1800-186): This helpline addresses violations of human rights, including unlawful arrests, custodial abuse, and denial of fundamental rights.

Conclusion

The protection of the rights of arrested persons is a cornerstone of a just and democratic society. The cases discussed above underscore the judiciary's pivotal role in safeguarding individual liberties and ensuring accountability in law enforcement. From the D.K. Basu guidelines, which institutionalized procedural safeguards during arrest and custody, to the Joginder Kumar judgment, which curtailed arbitrary arrests, each case has contributed significantly to upholding the dignity and constitutional rights of individuals.

The judgments in Arnesh Kumar vs State of Bihar and State of Punjab vs Baldev Singh highlight the importance of procedural compliance and the need to balance investigative requirements with individual liberties. These cases have restricted the misuse of laws, prevented unnecessary detentions, and emphasized adherence to statutory safeguards. Similarly, Sheela Barse vs State of Maharashtra brought attention to the vulnerabilities of women in custody and led to systemic reforms aimed at ensuring their safety and dignity.

Collectively, these legal precedents form a robust framework for protecting the rights of the arrested, reaffirming the constitutional guarantees under Articles 21 and 22. While challenges remain in the practical implementation of these safeguards, these judgments have provided a legal and moral foundation to ensure accountability, fairness, and transparency in the criminal justice system. Moving forward, sustained efforts toward public awareness, police training, and judicial oversight will be critical in translating these principles into practice, ensuring that the rights of every individual remain inviolable, even in the face of arrest or detention.

Disclaimer

The contents in this article are just for informational purposes only. Efforts have been made to ensure the accuracy and reliability of information, the author(s) and publisher do not guarantee its completeness or precision. Any matter written in this article does not express the opinion of the author or the publisher. Additionally, it does not reflect the views of the organisation. Readers should self-analyse the information and perceive accordingly. The author(s), The publisher and the organisation are not responsible for any losses or damage occurring due to the interpretation of the article.